JUS - 2019 - 3

The seventieth anniversary of the German constitution, with the famous art. 1 which proclaims the inviolability of human dignity, constitutes an opportunity to reflect on the meaning and implications of the value of dignity in the constitutional systems of the post-Auschwitz period in the light of the most relevant international conventions. The essay emphasizes that dignity, in addition to providing the basis for the universalization of legal subjectivity, plays a special role in protecting the person in situations of need or disparity where the value of dignity finds a relational and coherent specification with the principle of solidarity. Particular attention is also paid to the controversial relationship between dignity and self-determination, highlighting the need to distinguish these two values from the tendency to reduce dignity to self-determination. Dignity and self-determination should not in fact be thought of as antagonistic values, since dignity is the foundation of the person’s autonomy and therefore the source of its promotion as a value. There is in fact the risk of reversing the relationship between the two values and allowing the value of dignity to be absorbed in that of self-determination with the consequence of regressing to a discriminatory conception of the dignity and substantially dismissing it of meaning.

The Church has, at various times in its history, been described as a communitas perfecta, a perfect and supreme society that has as its goal the promotion of salvation of humanity. Like any organization, the Church is governed by rules that enable it to achieve its end, and this is the most basic function of canon law. When John Paul II promulgated the revised Codex iuris canonici in 1983 by means of the Apostolic Constitution Sacrae disciplinae legis, recognizing that in the aftermath of the Second Vatican Council the place of law in the Church was again being questioned by many, he offers four clear definitions for the role and function of canon law. First, canon law makes the hierarchical and organic structure of the Church visible. Second, canon law ensures the proper exercise of the sanctifying function of the Church. Third, canon law provides rights, obligations, and methods of resolving conflicts in the Church. Fourth, canon law attempts to provide the structures that sustain and direct the Church’s common initiatives.

The rejection of the law by the Church ( anti jurisprudence current) on the part of various doctrinaire currents during the last thousand years has been brought about by manifold factors and has been supported by a variety of considerations. Some of these considerations concerned the Church more than the law. These considerations regarded ecclesiastical authority , the Church’s exercise of power. The considerations were based on a negative vision of law because of its own coactivity. But the conception of law ( as a collection of normative prescriptions coming from the powers that be) is to be found in institutions that have carried them into the Church though with precise theological motives intending to make law applicable to character of the Church community. Marginal attention has been given on a doctrinal basis to the necessary relationship between law and justice — although this necessary relationship depends essentially on its doctrinal basis. This study means to develop the above aspect in order to demonstrate how law and justice find their highest justification in God’s designs for humankind and the Church. In such designs, one must look for the solutions of the problems they pose while being fully aware of the difficulties that accompany these inquiries as God is a never entirely fathomable mystery. But in rejecting law ( to which justice is necessarily linked) with the idea of freeing oneself from the problem’s complexity, would be a serious mistake bringing negative effects to society and mankind which the law is meant to serve.

The essay starts from the speech by Giovanni Battista Montini, the future Paul VI, on the “providentiality” of the end of the Papal States in 1870, to capture some effects of this event on the developments of the canonical legal order. Attention is focused in particular on the following effects: a better distinction between Church and political community, on the reform of the Roman Curia, on canonical codification, on the international subjectivity of the Holy See. The conclusion is that the end of the temporal sovereignty of the Popes constituted a moment of regeneration (also) of canon law; it represented a very strong stimulus to the rediscovery and exaltation of its most authentic nature serving the properly spiritual mission of the Church.

The paradigm of jurisdictional dualism is a result typical of civil European history which brought about, from one aspect, the secularism of Law and the plurality of its sources. This does not imply the ‘neutralising’ of religious beliefs, or of faith convictions comparable to them, in the public domain. But it reveals, rather, the hidden face or the other aspect of the complementary quality between the political support of rights and dialogical mediating of faiths. This is also due to contribution of jurisprudential hermeneutics applies by European Courts supporting an ‘economy of differences’. In this perspective, one can speak of an European-style secularism mode able not only of safeguarding religious freedom but also of saving democratic regimes from the risks of decline unveiling the false transcendence of occult ideologies of power. These same ideologies are detrimental to the ‘trascendental’ dignity that belong to every human being.

Taking the cue from the signing of the agreement with the association Chiesa d’Inghilterra, we note the lack of a common regulation not on religious freedom, which is protected by the rules of the Italian Constitution through directly effective regulations, and which could be invasive and nadequate, but of a common basic regulation on religion, such that it goes beyond the old law on accepted cults and equates, as far as possible, the condition of churches with an agreement with those that do not have one. The viewpoint of the bilaterally contracted law, inherited from and confirmed by the pre-Republican period, while meeting the needs of cults, is not able to ensure a certain uniformity of treatment for all denominations, i.e. it cannot be applied also to those cults that have not negotiated it, that do not want or cannot do so. What is lacking is a unilateral law of the State, which outlines the essential and common points, that is the basis and reference index for other laws, given that equality does not mean the same things and that differentiations are allowed, or rather imposed, as long as they are not arbitrary. Besides, there is the problem of religious instances referring to secular and profane aspects of the human person, which can be inserted into the formative process of the law, allowing for to norms, which in religiously motivated subjects receive a further compelling force. It is responsibility of a pluralist and secular State, aware and guarantor of its own values and indispensable rules, to supervise the process of synthesis of the different cultures